REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL REVISION NO. E010 OF 2025
(Coram: Andayi W. F., J.)
KAZUNGU MWALIMU CHENGO…..…………………APPLICANT
VERSUS
REPUBLIC………………………………………………RESPONDENT
RULING
1. This matter is placed before this court for review of sentence. The review of sentence is under Articles 50(2)(q) and 165(6) and (7) of the Constitution of Kenya, sections 362 and 364(1)(b) of the Criminal Procedure Code (Cap. 75) Laws of Kenya, the Probation of Offenders Act (Cap. 64) Laws of Kenya, section 3(1) of the Community Service Orders Act (Cap. 93) Laws of Kenya and pursuant to the Directions by the Honourable the Chief Justice in Her Memo dated 19/8/2024 on decongestion of prisons.
2. The Lower Court file has been placed before this court and I have perused the same.
3. The offender was convicted for the offence of malicious damage to property contrary to section 339(1) of the Penal Code (Cap. 63) Laws of Kenya upon entering a plea of guilty.
4. Particulars of the offence were that on the 17/8/2024 at around 1730 Hours at Zigira village in Kinondo location of Kwale County within Coast region he willfully and unlawfully damaged one smart phone make Samsung light green in colour valued at KShs 15,000/= the property of Anita Mueni Kamuya.
5. He was sentenced to serve one-year imprisonment.
6. The circumstances of the offence were that the offender who as an ex-boyfriend of the complainant went to her place where she sells “mnazi” and took her handbag, took her mobile phone from it and without any cause smashed it with a stone severally. He partook of the mnazi and said he would not pay for it. When the complainant told him that she would report to the police, he said he did not fear police. When she went to report to the village elder, the accused went away. He was arrested afterwards and charged. He pleaded guilty to the charge.
7. The trial court called for a pre-sentence report. The pre-sentence report was negative for a non-custodial sentence. The victim indicated that she had reported several cases against the offender to the village elder but later withdrawn them. This was confirmed by the village elder. The report also indicated that the offender had no fixed place of abode as he had come to the village as a palm wine tapper from a different village and he had remained there for the last three years. It indicated that the offender had no bad relationship with the community.
8. Upon considering the report, the learned trial magistrate passed a sentence of one-year imprisonment on 11/9/2024 to be computed from the date of arrest which according to the charge sheet was 18/8/2024. He should thus complete his sentence on 17/5/2025 if remission of one third of the sentence is factored in.
9. A sentence review report dated 24/4/2025 has been placed before this court and it indicates that the offender is aged 33 years. He has served most of his term and remains with less than a month. The report indicates that the offender has reformed and accepts responsibility for his offence, promises to be law abiding and prays for a non-custodial sentence.
10. The report recommends that he be released unconditionally.
11. It is settled law that sentencing is at the discretion of the trial court and an appellate court should be slow to interfere unless there are factors that warrant such interference. This position was restated by the Court of Appeal in the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR as follows:
“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”
12. Since the offence of malicious damage to property carries a maximum term of 5 years imprisonment and the learned trial magistrate was minded to impose a sentence of less than three years imprisonment, she ought to have been guided by the provisions of section 3(1)(b) of the Community Service Orders Act (Cap. 93) Laws of Kenya which provides that where any person is convicted of an offence punishable with imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate, the court may, subject to this Act, make a community service order requiring the offender to perform community service. In that respect, the offender ought to have benefitted from a non-custodial sentence. I do not find any aggravating circumstances in this case that would warrant a custodial sentence.
13. The learned trial magistrate would further be guided by the Sentencing Policy Guidelines, 2023 which provide policy directions on how to consider whether to impose a custodial or non-custodial sentence as follows:
“2.3.13 Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for cases where the offence is so serious that neither a fine nor a community sentence can be justified. The length of that sentence will depend on the maximum penalty allowed by law and the seriousness of the offence and other factors set out in Part V. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence that is geared towards achieving the sentencing principles and objectives set out in Part I.
2.3.14 Imprisonment of petty offenders should be avoided, as the rehabilitative objective of sentencing is rarely met when offenders serve short sentences in custody. Further, short terms of imprisonment are disruptive and contribute to re-offending.”
14. The circumstances of the offence did not warrant a prison term especially considering the issue of congestion in Kenya’s prison system. In this respect, I am persuaded to follow the reasoning of Odunga, J. (as he then was) in the case of Patrick Muli Mukutha v Republic [2019] eKLR, where after citing several authorities on the issue of the discretion of the trial court in sentencing and upon considering the principles that “the Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors” was moved to add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case”.
15. I find that in the circumstances of this case the sentence imposed by the learned trial magistrate upon the offender herein was manifestly excessive. I am satisfied that the offender is suitable for a sentence review.
16. I find that the offender has served a sufficient period in custody as the sentence review report shows. Consequently, the sentence is reviewed and substituted with a sentence providing that the offender is sentenced to a term of imprisonment of the period so far served. The offender to be released from custody forthwith unless otherwise lawfully held.
17. It is so ordered.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 12th day of May 2025.
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect.
ANDAYI W. F.
JUDGE
IN THE HIGH COURT OF KENYA AT KWALE
CRIMINAL REVISION NO. E010 OF 2025
(Coram: Andayi W. F., J.)
KAZUNGU MWALIMU CHENGO…..…………………APPLICANT
VERSUS
REPUBLIC………………………………………………RESPONDENT
RULING
1. This matter is placed before this court for review of sentence. The review of sentence is under Articles 50(2)(q) and 165(6) and (7) of the Constitution of Kenya, sections 362 and 364(1)(b) of the Criminal Procedure Code (Cap. 75) Laws of Kenya, the Probation of Offenders Act (Cap. 64) Laws of Kenya, section 3(1) of the Community Service Orders Act (Cap. 93) Laws of Kenya and pursuant to the Directions by the Honourable the Chief Justice in Her Memo dated 19/8/2024 on decongestion of prisons.
2. The Lower Court file has been placed before this court and I have perused the same.
3. The offender was convicted for the offence of malicious damage to property contrary to section 339(1) of the Penal Code (Cap. 63) Laws of Kenya upon entering a plea of guilty.
4. Particulars of the offence were that on the 17/8/2024 at around 1730 Hours at Zigira village in Kinondo location of Kwale County within Coast region he willfully and unlawfully damaged one smart phone make Samsung light green in colour valued at KShs 15,000/= the property of Anita Mueni Kamuya.
5. He was sentenced to serve one-year imprisonment.
6. The circumstances of the offence were that the offender who as an ex-boyfriend of the complainant went to her place where she sells “mnazi” and took her handbag, took her mobile phone from it and without any cause smashed it with a stone severally. He partook of the mnazi and said he would not pay for it. When the complainant told him that she would report to the police, he said he did not fear police. When she went to report to the village elder, the accused went away. He was arrested afterwards and charged. He pleaded guilty to the charge.
7. The trial court called for a pre-sentence report. The pre-sentence report was negative for a non-custodial sentence. The victim indicated that she had reported several cases against the offender to the village elder but later withdrawn them. This was confirmed by the village elder. The report also indicated that the offender had no fixed place of abode as he had come to the village as a palm wine tapper from a different village and he had remained there for the last three years. It indicated that the offender had no bad relationship with the community.
8. Upon considering the report, the learned trial magistrate passed a sentence of one-year imprisonment on 11/9/2024 to be computed from the date of arrest which according to the charge sheet was 18/8/2024. He should thus complete his sentence on 17/5/2025 if remission of one third of the sentence is factored in.
9. A sentence review report dated 24/4/2025 has been placed before this court and it indicates that the offender is aged 33 years. He has served most of his term and remains with less than a month. The report indicates that the offender has reformed and accepts responsibility for his offence, promises to be law abiding and prays for a non-custodial sentence.
10. The report recommends that he be released unconditionally.
11. It is settled law that sentencing is at the discretion of the trial court and an appellate court should be slow to interfere unless there are factors that warrant such interference. This position was restated by the Court of Appeal in the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR as follows:
“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”
12. Since the offence of malicious damage to property carries a maximum term of 5 years imprisonment and the learned trial magistrate was minded to impose a sentence of less than three years imprisonment, she ought to have been guided by the provisions of section 3(1)(b) of the Community Service Orders Act (Cap. 93) Laws of Kenya which provides that where any person is convicted of an offence punishable with imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate, the court may, subject to this Act, make a community service order requiring the offender to perform community service. In that respect, the offender ought to have benefitted from a non-custodial sentence. I do not find any aggravating circumstances in this case that would warrant a custodial sentence.
13. The learned trial magistrate would further be guided by the Sentencing Policy Guidelines, 2023 which provide policy directions on how to consider whether to impose a custodial or non-custodial sentence as follows:
“2.3.13 Where the option of a non-custodial sentence is available, a custodial sentence should be reserved for cases where the offence is so serious that neither a fine nor a community sentence can be justified. The length of that sentence will depend on the maximum penalty allowed by law and the seriousness of the offence and other factors set out in Part V. The court should bear in mind the high rates of recidivism associated with imprisonment and seek to impose a sentence that is geared towards achieving the sentencing principles and objectives set out in Part I.
2.3.14 Imprisonment of petty offenders should be avoided, as the rehabilitative objective of sentencing is rarely met when offenders serve short sentences in custody. Further, short terms of imprisonment are disruptive and contribute to re-offending.”
14. The circumstances of the offence did not warrant a prison term especially considering the issue of congestion in Kenya’s prison system. In this respect, I am persuaded to follow the reasoning of Odunga, J. (as he then was) in the case of Patrick Muli Mukutha v Republic [2019] eKLR, where after citing several authorities on the issue of the discretion of the trial court in sentencing and upon considering the principles that “the Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors” was moved to add a third criterion namely, “that the sentence is manifestly excessive in view of the circumstances of the case”.
15. I find that in the circumstances of this case the sentence imposed by the learned trial magistrate upon the offender herein was manifestly excessive. I am satisfied that the offender is suitable for a sentence review.
16. I find that the offender has served a sufficient period in custody as the sentence review report shows. Consequently, the sentence is reviewed and substituted with a sentence providing that the offender is sentenced to a term of imprisonment of the period so far served. The offender to be released from custody forthwith unless otherwise lawfully held.
17. It is so ordered.
Ruling dated, signed and issued on the Judiciary Virtual Platform Teams, this 12th day of May 2025.
HON. ANDAYI W. F.
JUDGE
Ruling transmitted to prison authorities electronically to be given effect.
ANDAYI W. F.
JUDGE